Advocates await Supreme Court decisions

NEWS

Published 06/13/2013

analysis by Lisa Keen

Edith Windsor, the plaintiff in the federal Defense of
Marriage Act case, spoke to reporters following oral arguments at the U.S. Supreme
Court in late March. Decisions in the DOMA and Proposition 8 cases are expected
this month.(Photo: Rudy K. Lawidjaja)

The United States Supreme Court will release decisions any
day now in two high-profile cases involving marriage and same-sex couples.
Historically, the court has favored releasing its most controversial decisions
on the last day of its session, which would be in late June.

In past years, the court released four of its last six
gay-related decisions on the last day of the session.

While most mainstream media are reporting on the cases as if
the court will decide whether gay couples can get married, the stakes are
really much higher for LGBT people. The bottom line issue in both cases is
whether gay people can have equal protection under the law. Whatever the court
rules, it will have enormous impact on the legal and political well-being of
LGBT people in every arena for decades to come. [See related story.]

The first opinion likely to be released will concern
California's Proposition 8 – an amendment to the state constitution,
approved by voters in 2008, to prohibit the state from issuing or recognizing
as valid marriage licenses for same-sex couples. The case is Hollingsworth
v. Perry.

The second opinion, United States. v. Windsor
, asks whether a section of the federal Defense of
Marriage Act is constitutional.

Most experts predict that, if the court can clamber over
some procedural obstacles to both cases, it will strike down both Prop 8 and part
of DOMA. But there are many variations on how all this might play out.

For instance, in the Prop 8 case, it's possible, notes
veteran lesbian law activist Nan Hunter (blogging at http://www.hunterofjustice.com), that
the court will find that Yes on 8 has standing but that the court doesn't want
to issue an opinion on the constitutionality of Prop 8. If that happened, wrote
Hunter, the 9th U.S. Circuit Court of Appeals decision remains intact and is binding
on all nine of the 9th Circuit states.

One of the more limited outcomes would likely happen if the
court rules Yes on 8 proponents did not have legal standing to appeal the lower
court decisions. The California Supreme Court said Yes on 8 did have standing
and the 9th Circuit agreed. The 9th Circuit seemed to agree that denying Yes on
8 the right to appeal amounted to giving state officials veto power over
voter-approved initiatives, a.k.a. the "democratic process." And key
justices, including Justice Anthony Kennedy, have been publicly vocal about
their preference that the democratic process decide hot-button controversies,
not the court.

For Section 3 of DOMA, the court could rule on the merits of
part of the federal law's constitutionality or it could find some procedural
issue that precludes a ruling on merits. If there's no ruling on the merits, the
court could allow the 2nd U.S. Circuit Court of Appeals decision against
Section 3 to stand. But it's hard to imagine the court would be comfortable
with allowing Section 3 of DOMA to be enforced in some parts of the country
(where federal courts have struck it down) and not others. It's the Supreme
Court's job, after all, to step in where there's a conflict among the circuits
and states. And if the court doesn't rule on U.S. v. Windsor
, it will almost certainly accept another DOMA case
in which to examine the law's constitutionality.

Even if the court sticks to the more limited actions, the
result would be a major leap forward for marriage equality. In the Prop 8 case,
just adding California to the list of states with marriage equality pushes to
30 percent the nation's population that would be living in marriage equality
states – a huge jump from the 18 percent who live in such states now.

Whatever the Supreme Court does, it will do it sometime
between Thursday (June 13), and June 27, the likely last day of the session.
(The court's public information office says the last official day has not yet
been decided.) And many believe the results will represent among the most
important civil rights decisions in Supreme Court history. They most certainly
will be among the most important in LGBT history.

"I'm hopeful the Supreme Court will do the right
thing," said Evan Wolfson, head of the national group Freedom to Marry.
"And clearly, the right answer under the Constitution, and for the good of
same-sex couples and our country, is to end the denial of freedom to marry
nationwide and assure that all marriages are respected equally."